Nickels v. Durbano

795 P.2d 903, 118 Idaho 198, 1990 Ida. App. LEXIS 119
CourtIdaho Court of Appeals
DecidedJuly 19, 1990
Docket17727
StatusPublished
Cited by4 cases

This text of 795 P.2d 903 (Nickels v. Durbano) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nickels v. Durbano, 795 P.2d 903, 118 Idaho 198, 1990 Ida. App. LEXIS 119 (Idaho Ct. App. 1990).

Opinions

SWANSTROM, Judge.

This appeal is from a district court order denying a defendant’s motion to set aside a default judgment. The issues we address [200]*200include whether the defendant was entitled to notice under I.R.C.P. 55(b)(2) of plaintiffs application for a default judgment and whether the district court abusecl its discretion in denying defendant’s motion for relief from the judgment under I.R.C.P. 60(b)(1). For the following reasons, we affirm in part and vacate in part.

Ernest Durbano of Ogden, Utah, sold an antique aircraft to Alfred Nickels of Twin Falls, Idaho. A purchase contract was signed in Idaho October 1, 1987 when Nickels took possession of the aircraft and paid $10,000 toward its purchase price. The balance of $60,000 was to be paid October 15, 1987. The contract recited that the used aircraft was being sold without warranty, express or implied.

Nickels refused to pay the balance due, contending that he learned the aircraft had been misrepresented, that it had restrictions placed on it by the Federal Aviation Administration which prohibited certain use of the aircraft, and that the aircraft was not mechanically fit for flying. Durbano refused to rescind the contract. For several months the parties attempted to reach a settlement. Their negotiations were unsuccessful.

On April 5, 1988, Durbano filed suit against Nickels in the United States District Court for the district of Utah seeking damages for breach of the contract and for return of the aircraft. Two days later, Nickels filed suit against Durbano in the district court of the State of Idaho seeking rescission of the contract. Nickels was served with summons in the federal case on April 8. On April 13 — with the aid of Utah counsel — he filed a motion to dismiss with a special appearance to challenge the jurisdiction of the federal court over his person. On April 18, Durbano was served with summons and a copy of Nickels’ complaint in the Idaho case.

On May 2, the federal court notified the parties that it would allow Durbano sixty days to take depositions before the court ruled on the question of its jurisdiction over Nickels. While this issue was pending, and without giving notice to Durbano, Nickels moved for Durbano’s default in the Idaho case because no appearance had been made. On May 16 Nickels was granted a default judgment. The Idaho court awarded damages and attorney fees to Nickels totalling approximately $35,000. The judgment was entered May 18 and the record shows that the clerk mailed a copy to Durbano the same day. The time for appeal— forty-two days — expired June 29.

On July 11, Durbano filed his motion under I.R.C.P. 60(b)(1) to set aside the default judgment on the grounds of “mistake, inadvertence, surprise or excusable neglect.”

In an affidavit supporting the motion, Durbano’s Utah counsel asserted that immediately after Durbano was served in the Idaho action, he contacted Nickels’ Idaho counsel and discussed the pending Idaho action. Durbano’s counsel claimed that based upon these conversations, an understanding existed between the two attorneys that if the federal action was dismissed for lack of jurisdiction the parties would then proceed to litigate the Idaho case. Durbano’s counsel also asserted that he reasonably believed the Idaho action would remain dormant until the issue of jurisdiction had been decided in the federal action. Due to this belief, Durbano did not contest the jurisdiction of the Idaho action or file any other responsive pleadings. The Idaho district court rejected Durbano’s arguments and denied his motion to set aside the default judgment. The court concluded that Durbano’s neglect was not “excusable.”

In general, the decision to grant or deny a motion to set aside a default judgment is committed to the sound discretion of the district court. The decision will not be disturbed on appeal absent a showing of an abuse of discretion. Hearst Corp. v. Keller, 100 Idaho 10, 592 P.2d 66 (1979). Rule 55(c), I.R.C.P., provides for setting aside a default “for good cause shown.” A default judgment may be set aside under Rule 60(b)(1) when the judgment has been entered because of “mistake, inadvertence, surprise or excusable neglect.” Excusable neglect is conduct that might be expected of a reasonably [201]*201prudent person under the same circumstances. “The requirement of reasonable prudence extends not only to a party’s initial response upon being served process but also to his subsequent efforts to get the default judgment set aside.” Clark v. Atwood, 112 Idaho 115, 117, 730 P.2d 1035, 1037 (Ct.App.1986). He must act promptly and diligently in seeking relief. Id.; Stoner v. Turner, 73 Idaho 117, 247 P.2d 469 (1952). To set aside a default judgment a party must not only establish one of the grounds for relief under Rule 60(b), but must also plead facts which, if established, would constitute a defense to the original action. Hearst Corp. v. Keller, supra.

The standards for appellate review of the decision to deny a motion to set aside default judgment have been set forth in Avondale on Hayden, Inc. v. Hall, 104 Idaho 321, 658 P.2d 992 (Ct.App.1983):

Where oral testimony has been received, we will give due regard to the trial judge’s special opportunity to evaluate the credibility of the witnesses. Where the evidence is entirely in writing, we may draw our own impressions from the record, but we will not substitute our impressions for findings of fact by the trial judge unless we are convinced that those findings are clearly erroneous.

Id. at 325, 658 P.2d at 996. Furthermore: If (a) the trial court makes findings of fact which are not clearly erroneous, (b) the court applies to those facts the proper criteria under Rule 60(b)(1) (tempered by the policy favoring relief in doubtful cases), and (c) the trial court’s decision follows logically from application of such criteria to the facts fund, then the court will be deemed to have acted within its sound discretion. Its decision will not be overturned on appeal.

Id. at 326, 658 P.2d at 997. See also Shelton v. Diamond International Corporation, 108 Idaho 935, 703 P.2d 699 (1985).

A judge is not required to make any findings in ruling on the motion. However, where neither findings nor specific reasons were given for the ruling, the restrained standard of appellate review set forth in Avondale does not apply. The appellate court is at liberty to form its own impressions from the record and to exercise its own discretion in deciding whether the default judgment should have been set aside. Johnson v. Pioneer Title Co. of Ada County, 104 Idaho 727, 732, 662 P.2d 1171, 1176 (Ct.App.1983) (review denied). Finally, judgments by default are not favored, and the general rule in doubtful cases is to grant relief from the default in order to reach a judgment on the merits. Id.

I.R.C.P. 55(b)(2): NOTICE OF APPLICATION FOR DEFAULT JUDGMENT

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Nickels v. Durbano
795 P.2d 903 (Idaho Court of Appeals, 1990)

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Bluebook (online)
795 P.2d 903, 118 Idaho 198, 1990 Ida. App. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nickels-v-durbano-idahoctapp-1990.